Case: Planned Parenthood of Michigan v. Attorney General of Michigan

This case is plaintiffs’ effort to avoid the triggering of Michigan’s dormant anti-abortion law. Michigan’s 1931 felony abortion law, MCL 750.14, criminalizes providing an abortion in almost all circumstances and threatens physicians who perform the procedure with imprisonment. MCL 750.14 was never repealed; it has not been enforced because of the Supreme Court’s decision in Roe v. Wade holding that the U.S. Constitution protects the right to get an abortion. The Michigan Supreme Court has yet to address whether the Michigan Constitution protects the right to abortion. Recognizing the increasing likelihood that the U.S. Supreme Court would soon overturn Roe (as it did on June 24, 2022), Planned Parenthood of Michigan and a named abortion provider filed this suit in Michigan’s Court of Claims against the Michigan Attorney General on April 7, 2022. Plaintiffs are represented by Planned Parenthood of America, the ACLU of Michigan, and the University of Michigan Law School Civil Rights Litigation Initiative. On the same day, the Governor also filed a lawsuit on the same topic (see Whitmer v. Linderman). 

Arguing that MCL 750.14 is unconstitutionally vague and violates rights to liberty, bodily integrity, equal protection, and privacy under the Michigan Constitution, the complaint in this case sought declaratory relief and a preliminary injunction barring the statute’s enforcement while the suit is ongoing. The case was assigned to Judge Elizabeth L. Gleicher, a Court of Appeals judge serving on the Court of Claims.

Attorney General Dana Nessel responded to the complaint on May 5, 2022, agreeing that MCL 750.14 is unconstitutional but disagreeing with plaintiffs’ argument that her office was required to defend the statute’s constitutionality. The Attorney General pointed out that the Governor had already spoken out against MCL 750.14, and argued that it would be inconsistent with her public duty if she had to defend a law that “plainly” violates Michigan’s Constitution. Vowing neither to defend nor enforce the MCL 750.14, the Attorney General claimed that the case could not proceed because plaintiffs and she were on the same side.  

On May 17, 2022, Judge Gleicher issued a preliminary injunction protecting the right to abortion. Judge Gleicher found that the Attorney General’s unwillingness to agree to a preliminary injunction and plaintiffs’ need for a declaration to guide the conduct of Planned Parenthood physicians (who might otherwise face prosecution by county prosecutors or by a future Attorney General) created sufficient adversity for the court to issue a declaratory judgment. Judge Gleicher’s opinion emphasized Michigan’s right to bodily integrity as grounds for MCL 750.14’s unconstitutionality. The preliminary injunction preserved both the right to abortion and existing laws regulating abortion in Michigan while the case is ongoing. 2022 WL 2103141.

On May 20, 2022, Jerard M. Jarzynka (the Prosecuting Attorney for Jackson County), Christopher R. Becker, (the Prosecuting Attorney for Kent County), Right to Life of Michigan, and the Michigan Catholic
Conference filed a motion with the Court of Appeals seeking "superintending control" -- that is, asking that it vacate the preliminary injunction and direct that the case be dismissed. This piece of the litigation is captioned In re Jarzynka.  

In the main case, the Michigan House of Representatives and Michigan Senate filed a motion to intervene and for reconsideration of the preliminary injunction on June 6, 2022, although they had declined to intervene at the outset of the lawsuit. The Legislature argued that the preliminary injunction was improper because of a lack of controversy between plaintiffs and the Attorney General and unripe claims as no one was being denied an abortion or prosecuted under MCL 750.14.[2]  Plaintiffs did not object to the Legislature’s intervention but did oppose reconsideration of the preliminary injunction on the grounds that the Legislature had had ample opportunity to intervene before the preliminary injunction was ordered. Prior to the Legislature’s intervention, two anti-abortion organizations and two county prosecutors also filed a separate suit for superintending control, asking the Court of Appeals to take over the Court of Claims case. No final ruling has yet occurred on this motion.

Judge Gleicher granted the Legislature’s motion to intervene but declined to reconsider the preliminary injunction on June 15, 2022. She held that the Legislature had not met its burden of demonstrating that the preliminary injunction resulted in part from a significant error by the parties or court.

On June 24, 2022, the Supreme Court held in Dobbs v. Jackson Women's Health Organization that the U.S. Constitution does not support any special protection of abortion rights, overruling Roe v. Wade. Thus the preliminary injunction in this case now stands between those who provide abortions and possible state prosecution.

On June 29, 2022, plaintiffs filed a motion for summary disposition, seeking to convert the preliminary injunction into a permanent one. The motion repeated the same theories as the complaint, but added the claim that the 1931 statute violated the Elliot-Larsen Civil Rights Act, a state statute prohibiting discrimination on the basis of several characteristics, including sex. The motion stated that the Attorney General but not the Legislature concurred. 

The Legislature filed a motion for leave to appeal the preliminary injunction in the Court of Appeals on July 6, 2022. The Legislature argued that the preliminary injunction ordered by the Court of Claims was extreme judicial overreach, reiterating the arguments they used in their previously denied motion for reconsideration. 

On July 12, the Legislature filed a motion for summary disposition, claiming that the court lacked subject-matter jurisdiction and plaintiffs lacked standing. The Legislature reiterated earlier arguments that plaintiffs' case lacked an actual controversy and was therefore premature because MCL 750.14 was not being enforced.

Back in May, two county prosecutors  had requested that the Court of Appeals take control of the litigation and dismiss it.  On August 1, the Court of Appeals denied that request -- but did so in an opinion that held that the Court of Claims litigation did not bind prosecutors (since only state-wide officials are subject to the jurisdiction of the Court of Claims).  Therefore, the Court of Appeals held, in an opinion by judge Stephen L. Borrello, and joined by Judges Michael J. Kelly and Michael F. Gadola, county prosecutors could, if they chose, bring prosecutions against doctors providing abortions even if the Court of Claims preliminary injunction remained -- and so the county prosecutors lacked standing to challenge it.  

This victory for opponents of abortion prompted Governor Gretchen Whitmer to file a motion enjoining county prosecutor enforcement of MCL 750.14 in her case, Whitmer v. Linderman. She was immediately granted a Temporary Restraining Order, to last only until the court had time to further consider the issue. 

On August 2, plaintiffs filed an application for leave to appeal with the Michigan Supreme Court, arguing that the Court of Appeals should have dismissed the prosecutors' complaint because an adequate remedy through direct intervention in the Planned Parenthood Court of Claims case was available to them. Plaintiffs also asked that the Michigan Supreme Court consider taking superintending control of the Court of Appeals case in the event that leave to appeal is not granted. Plaintiffs concurrently filed a motion for immediate consideration of their application and for a stay of the Court of Appeals holding limiting the scope of the preliminary injunction.

The Court of Appeals denied the legislature's July 6th application for leave for immediate appeal of the preliminary injunction on August 24, 2022. The order did not contain any substantive analysis but ensured that the preliminary injunction obtained in May remained in effect. 

On September 7, 2022, Judge Gleicher denied the Legislature's July 25 motion for a stay of proceedings and granted in part plaintiffs' June 29 motion for summary disposition in the Court of Claims, permanently enjoining enforcement of MCL 750.14. Judge Gleicher's opinion denying the Legislature's motion for a stay of proceedings noted that the Legislature was unlikely to prevail on the merits, that further delay would cause irreparable harm to Planned Parenthood and the patients whose interests they represent, and that public interest would be served by a final opinion from the court.

In her opinion granting partial summary disposition to plaintiffs, Judge Gleicher addressed arguments made by the Legislature in their cross-motion for summary disposition. Judge Gleicher held that Dobbs opinion and the publicly expressed intent of several local prosecutors in Michigan to enforce MCL 750.14 negated the Legislature's argument that no actual controversy existed, the issue was unripe and that therefore court intervention was unwarranted.

Michigan's right to bodily integrity was central to the court's decision. Judge Gleicher held that unlike the common law right to privacy, the right to bodily integrity enshrined in the Michigan constitution emphasizes "one's exclusive use and control of one's own body" and that other Michigan court opinions recognize "the primacy of the right correspond[s] with a universal understanding that bodily autonomy is inherent to human integrity." Furthermore, Judge Gleicher held that "decisions of the United States Supreme Court interpreting identically worded provisions do not preclude Michigan Court from adopting a more capacious construction." Contrasting the Supreme Court's backward-looking approach to constitutional interpretation in Dobbs with the legislative history surrounding Michigan's 1963 state constitution, the opinion emphasized that MCL 750.14 predated the current constitution by decades and that the people of Michigan ratified the 1963 constitution "expecting that their document would safeguard present and newly emerging liberties." In addition to preventing the Attorney General from enforcing MCL 750.14, the opinion emphasized that the court's permanent injunction applied to local county prosecutors as well. Judge Gleicher concluded that "enforcement of MCL 750.14 will endanger the health and lives of women seeking to exercise their constitutional right to an abortion."

On September 8, 2022, the Michigan Supreme Court held that Proposition 3, the Right to Reproductive Freedom Initiative (Prop 3), which would enshrine reproductive rights in the Michigan constitution, must appear on the November 2022 ballot. The lawsuit was rendered moot when Michigan voters approved Prop 3 on November 8, 2022. This case is closed.